The Court of Appeal has dismissed Brian Crowley’s appeal against the High Court’s dismissal of claims against Garda Caulfield, Inspector Phibbs, solicitor Clodagh Buckley and Ivor Fitzpatrick Solicitors. The appeal concerned only those defendants; other parts of the High Court order were not pursued on appeal or had been abandoned.
The claims arose from the repossession of the Crowleys’ family home in Bray and Mr Crowley’s prosecution after he broke into the house with an angle grinder in November 2016. Start Mortgages had acquired the loans and mortgage in 2015. A 2016 application to renew an execution order was made in the Bank of Scotland’s name, although the loans had been transferred to Start. The Court of Appeal recounted that the application was made ex parte and that an affidavit supporting it had a defective jurat. The County Registrar nevertheless made an execution order, which was executed on 1 November 2016.
Mr Crowley was arrested and charged with criminal trespass and criminal damage. The criminal damage charge was dropped. In March 2019, the District Court dismissed the remaining charge without hearing evidence after Mr Crowley’s solicitor objected to late disclosure of a statement from Start’s secretary.
The High Court had struck out the claims against Caulfield and Phibbs, finding no evidence to support the allegation that they acted maliciously in connection with the prosecution. On appeal, Mr Crowley argued that the Gardaí should have checked the execution order and that the late statement and disclosure showed malice. The Court of Appeal said the appeal did not dislodge the High Court’s central finding: malice had been asserted without supporting evidence. It also said the Gardaí could not be expected to question court orders, and that the delay in obtaining and disclosing the statement did not establish malice.
The appeal against the dismissal of the claims against Buckley and Ivor Fitzpatrick also failed. The High Court had dismissed the claim against Buckley because she was an employed solicitor acting in the course of her employment; that ruling was not challenged on appeal. The Court of Appeal rejected the arguments that the law firm owed Crowley a duty of care on the facts pleaded or that the cited authority supported such a duty. It also found no basis for the claim that the mistaken identification of the applicant in the execution-order application was a deliberate deceit.
The court dismissed the appeal. It provisionally considered that the respondents should receive their costs, but allowed Crowley 14 days to file a short submission seeking a different order. If he does so, the respondents may reply within a further 14 days. The judgment does not record a final costs order.